Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-18


tracts, but per cent. cheaper than other
customers. The city Of Austin in 1883 81
levied tax Of one-third of per cent.
upon all property subject to taxation IN
der laws of the state of the said company
for public school purposes; and it also
levied an ad val0rem tax Of l
per cent. on the same property
for municipal purposes generally
This suit was instituted by appellee to re-
strain the city snd its tax collector from
selling certain property belonging to the
company levied upon to satisfy taxes due
for years named; also to restrain the city
from leyying and collecting taxes on the
property of said company in the future.
The court below rendered Judgment dis
solving Injunction as to the school taxes
and upon the lot; and that defendant re-
ceive the taxes tor 1S64-5 upon the lot,
and the school taxes for said years upon
the entire property, and perpetuating the
INJUNCTION for the ad valorem taxes for
1915, upon the machinery, etc Of
plaintiff company. Plaintiff to recover
costs. Both parties appeal. It is claimed
by appellant that the city of Austin did
not have the power to exempt the
property in question from taxation.
Held: The Legislature was empowered
by article y, section l91, Of the consti-
tuition in force at the time the contract
relied on was made, to exempt from tax
alton such property, as wothirds Of both
houses Of the Legislature might think
proper to exempt; but as it cannot be
claimed that the Legislature attempted to
confer like power on the City Council
of Austin, 1t becomes unnecessary to in
quire whether the Legislature could have
delegated such power. The City Council
could not legally exempt property from
taxation unless the authority was dele
gated to it by the Legislature. The con-
tract relied on so far as il attempted to give
the exemption claimed, must be held void
1t is urged that the contract in question
did not give an exemption from taxation,
but by way Of Communication the gas COM
pany, by reason Of the deduction made on
gas furnished the city, paid to the city
more thsn the taxes would amount to on
said property. Held; This proposition is
unsound. The power to commute taxes
| is but an incident of the power to exempt.
The charter Of the city of Austin does not
authorize exemption, but on the other
hand empowers the council to levy an ad
valorem tex on all property in the city
limits. Further held: There can be no
|
between the rights CT the
on the lot owned by appellee than On 9TH
exemption being void the appellee must
be held as having sold gas to the city st
the price which it paid, and to have been
thus fully paid therefor. The judgment
of the District court will be reversed, and
here rendered dissolving the Injunction
and dismissing the appaliee's bill. Re-
versed and rendered. Stavton, J.
| W. D Cleveland vs.. G r Sims; appeal
from Navarro county. This IS a suit by
G. r. Sims against w. D. Cleveland to
recover certain lot OF ground described
in the petition as lot 4 in block Is in the
town Of Dawson. On April 4, 1882, H.
| Halcombe and wife conveyed to A. II &
g. r. Sims lot in block Is in the town
OF Springhill, the name OF which was after
| wards changed to Dawson, and on Octo-
Der Is, 1882, the Sims and the owners OF
| the other six lots in block Is signed an
agreement changing the positions CT the
| lots In that block, and the lots SO changed
were designated by letters instead Of
numbers, lot A being made to take the
plsce CT lot Z. On December 3, 1888, A.
II. Sims conveyed to appellee his half in
terest in lot in block Is in said town,
adding as follows: "This being lot No.
Z according TO the subdivision Of block
IS by A. H, Sims, G R. Sims, T. Smith,
j. J. Stansell erd G. W. Younger, to
which subdivision reference is hereby
made" 1t was proved that st the date
Of the last deed A. II Sims WAS q mem
Der of the firm OF Hollinger & Sims
who were dong business as merchants in
stone house situated upon the lot in
controversy, and that they became insol-
vent in December, 1883, their assets be-
| ing but little more than third Of their
| liabilities. But no suit had been filed
against them at the time A. H. Sims made
the conveyance to appellee. A. Fl. and
G. r Sims were brothers out the latter
had no interest in the firm of Holinger &
Sims. Cleveland had an attachment
levied December 6, 1888, on the lot in
controversy and bought at the sale made
IN the attachment proceedings. TIE
case was submitted to the Judge below
who rendered judgment in favor of Sims.
When the deed from A. II. to G. r. Sims
wss offered in evidence the appellant OBJ
jacted TO its being received because CT q
variance between the description Of the
lot in the deed and that contained
in the petition, which objec-
ton was OVerruled. In Ihis
we think there was no error.
The deed in referring to the agreement
for sub division of block Is, made be-
tween A. II. and G. r Sims and others,
adopts the description as there given of
the lot which fell to the share OF Sims
brothers, under that agreement and con-
veys thst lot. It is claimed that A. II
Sims was insOlVent when he made the
deed to his brother, and the latter had ct
the time full notice of the fact, but we
fail to find in the statement of facts such
proof OF notice in the appellee of the in
solyency of Holinger Sims as would
justify US in reversing Judgment found
ed upon an opposite view. Some four or
FIVE weeks after judgment, appellant sp-
piled for and obtained a commission to
take the deposition Of appellee. Appellee
| refused to answer, Snd the appellant af-
forwards made these facts the g.ound of
an amended motion for q new trial
claiming that failure to answer Tasa
confession of G r Sims of the facts of
which he was Intercepted ard that this
was newly discovered testimony. Held:
The court below properly overruled the
| motion. There is no error in the iudg-
ment and it is affirmed. Willie, c.. j.
M. e. Harkey ct al. vs.. Thomas M.
Cain ct al; appeal from Hunt county.
This was an action OF trespsss to try title
brought by appellants sgainst appellees
to recover lot OF land in the town Of
Lone Oak. in Hunt county, together with